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Superannuation (CSS) (Eligible Employees—Exclusion) Amendment (Judges) Declaration 2021

Superannuation (CSS) (Eligible Employees—Exclusion) Amendment (Judges) Declaration 2021

Administered by Department of Finance

Legislation au F2021L01094 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Issued by authority of the Minister for Finance

Superannuation Act 1976

Superannuation (CSS) (Eligible Employees—Exclusion) Amendment (Judges) Declaration 2021 made under paragraph (j) of the definition of ‘eligible employee’ included in subsection 3(1) of the Superannuation Act 1976.

The Superannuation Act 1976 (1976 Act) establishes and makes provisions for, and in relation to, the Commonwealth Superannuation Scheme (CSS) for Australian Government employees and certain other persons.

Subsection 3(1) of the 1976 Act contains the definition of the term “eligible employee” that describes various classes of persons who are contributory members of the CSS. Paragraph (j) of the definition of ‘eligible employee’ in subsection 3(1) of the 1976 Act enables the Minister for Finance, by legislative instrument, to declare a class of persons not to be an eligible employee. The Superannuation (CSS)(Eligible Employees – Exclusion) Declaration 2003 (the Principal Declaration) is an instrument made by the Minister under this paragraph.

Subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument.

The Minister for Finance has made an instrument to amend the Principal Declaration being the Superannuation (CSS) (Eligible Employees—Exclusion) Amendment (Judges) Declaration 2021. This instrument is referred to as the Amending Declaration in this Statement.

Amending Declaration

The Principal Declaration provides for the exclusion of Federal Magistrates of the Federal Magistrates Court from eligibility to be an ‘eligible employee’ of the CSS, that is a contributory member, in respect of their appointment. On 12 April 2013 the Federal Magistrates Court was renamed the Federal Circuit Court of Australia under the Federal Circuit Court of Australia Act 1999, and judicial officers of this court became Judges of the Federal Circuit Court. Judges of the Federal Circuit Court are excluded under the Principal Declaration through the operation of paragraph 25B(1)(a) of the Acts Interpretation Act 1901.

On 1 September 2021 the Federal Circuit Court of Australia (the Federal Circuit Court) and the Family Court of Australia (the Family Court) will be brought together under the Federal Circuit and Family Court of Australia Act 2021 into a combined administrative structure to be known as the Federal Circuit and Family Court of Australia (FCFC). The FCFC will comprise two divisions:

the Federal Circuit and Family Court of Australia (Division 1) – a continuation of the Family Court; and
the Federal Circuit and Family Court of Australia (Division 2) (‘FCFC (Division 2)’) – a continuation of the Federal Circuit Court.

The Amending Declaration updates the Principal Declaration by replacing references to Judges of the Federal Circuit Court with references to Judges of the FCFC (Division 2) to ensure that the exclusion in respect of these officers continues under the new arrangements.

Details of the Amending Declaration are at Attachment A.

Legislation Act 2003

The Amending Declaration is a legislative instrument. Although regulations made for the purpose of paragraph 44(2)(b) of the Legislation Act 2003 exempt superannuation instruments from disallowance, the Amending Declaration is subject to disallowance in accordance with subsection 3(1BD) of the 1976 Act.

Consultation

The Office of Best Practice Regulation (OBPR) was consulted (OBPR ID 44179). A Regulation Impact Statement was not prepared as the instrument is machinery in nature.

Commencement

Sections 1 to 4 and anything else in the Amending Declaration not elsewhere covered by the table set out in section 2 of that instrument commences the day after that instrument is registered. Schedule 1 of the Amending Declaration commences immediately after the commencement of section 2 the Federal Circuit and Family Court of Australia Act 2021.

Statement of Compatibility with Human Rights

A Statement of Compatibility with Human Rights is at Attachment B.

ATTACHMENT A

DETAILS OF THE AMENDING DECLARATION

Name

Section 1 provides that the name of the instrument is the Superannuation (CSS) (Eligible Employees—Exclusion) Amendment (Judges) Declaration 2021.

Commencement

2. Section 2 sets out the commencement provision for the amendments contained in the Amending Declaration. Item 1 of the table set out in subsection 2(1) provides that sections 1 to 4 and anything in the instrument not elsewhere covered by the table commences the day after the Amending Declaration is registered on the Federal Register of Legislation. Item 2 of the table set out in subsection 2(1) provides that Schedule 1 of the Amending Declaration commences immediately after the commencement of section 2 of the Federal Circuit and Family Court of Australia Act 2021.

3. The note under the table indicates that the table relates only to the provision of the Amending Declaration as originally made and that it will not be amended to deal with any later amendments to the Amending Declaration.

4. Subsection 2(2) provides that any information in column 3 of the table is not part of the instrument and that information may be inserted in this column, or information in it may be edited, in any published version of the instrument.

Authority

5. Section 3 identifies the authority for the instrument as paragraph (j) of the definition of ‘eligible employee’ in subsection 3(1) of the Superannuation Act 1976.

6. Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the relevant Schedule. It also provides that any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1 – Amendments

7. Item 1 of Schedule 1 repeals paragraph 7(1)(m) and substitutes a new paragraph 7(1)(m) in its place. This replaces the exclusion in respect of Federal Magistrates of the Federal Magistrates Court with an exclusion applying to persons who hold office as a Judge of the Federal Circuit and Family Court of Australia (Division 2).

ATTACHMENT B

Overview

The Superannuation (CSS) (Eligible Employees—Exclusion) Amendment (Judges) Declaration 2021 was enacted by the Minister for Finance under the authority provided by the Superannuation Act 1976. This legislative instrument addresses the gap created by the renaming and restructuring of the Federal Magistrates Court into the Federal Circuit Court of Australia and subsequently into the Federal Circuit and Family Court of Australia. The primary objective of this amendment is to ensure that the exclusion of certain judicial officers from being eligible employees of the Commonwealth Superannuation Scheme (CSS) continues seamlessly under the new court structure. This amendment reflects the evolving administrative landscape and maintains the integrity of superannuation arrangements for affected judicial officers. The Minister for Finance has the power to make such amendments as specified in paragraph (j) of the definition of ‘eligible employee’ in subsection 3(1) of the 1976 Act, ensuring that superannuation provisions are up-to-date with legislative changes.

Scope and Application

The Superannuation (CSS) (Eligible Employees—Exclusion) Amendment (Judges) Declaration 2021 amends the Superannuation (CSS) (Eligible Employees—Exclusion) Declaration 2003, which was made under the Superannuation Act 1976 to exclude certain individuals from being eligible employees of the Commonwealth Superannuation Scheme. Specifically, this amendment updates the exclusion to reflect the reorganisation of the Federal Circuit Court of Australia and the Family Court of Australia into the Federal Circuit and Family Court of Australia, effective from 1 September 2021. The Amending Declaration replaces references to Judges of the Federal Circuit Court with Judges of the Federal Circuit and Family Court of Australia (Division 2) to maintain the exclusion under the new administrative structure. The Act applies to Australian Government employees and other eligible individuals, excluding those who are designated as judges under the new court system. The geographic reach of the Act is national, as it pertains to the federal legislation governing superannuation contributions for public sector employees. The Amending Declaration is subject to disallowance under the Superannuation Act 1976, and it came into effect on the day after its registration, with a specific commencement date for the amendments outlined in Schedule 1 aligning with the Federal Circuit and Family Court of Australia Act 2021.

Key Provisions

The Superannuation (CSS) (Eligible Employees—Exclusion) Amendment (Judges) Declaration 2021 (the Amending Declaration) primarily modifies the Superannuation (CSS) (Eligible Employees – Exclusion) Declaration 2003 by updating the exclusion of certain judicial officers from being eligible employees of the Commonwealth Superannuation Scheme (CSS). The primary operative sections of this instrument are sections 1 to 4, which outline the instrument's name, commencement, authority, and effect on other instruments respectively (sections 1-4). Schedule 1 contains the specific amendments, replacing references to Judges of the Federal Circuit Court with Judges of the Federal Circuit and Family Court of Australia (Division 2) (Schedule 1, Item 1). This amendment ensures continuity in the exclusion of these officers from the CSS in light of the new administrative structure created by the Federal Circuit and Family Court of Australia Act 2021. The Amending Declaration imposes obligations on the Minister for Finance to ensure the updated exclusion aligns with the new court structure established by the Federal Circuit and Family Court of Australia Act 2021. The instrument requires the Minister to revise the Principal Declaration to maintain the exclusion of eligible employees who are now Judges of the Federal Circuit and Family Court of Australia (Division 2) (Schedule 1, Item 1). This reflects a legislative effort to keep superannuation eligibility provisions current with changes in court administrative structures. Failure to comply with the provisions of the Amending Declaration could potentially lead to judicial officers who should be excluded from the CSS being erroneously included, which could have significant financial implications for the scheme. While the Amending Declaration itself does not specify penalties for non-compliance, any breaches of the Superannuation Act 1976 (1976 Act) may incur civil or criminal penalties. The 1976 Act provides for various offences and penalties, including fines and imprisonment, depending on the severity of the breach. For instance, section 14 of the 1976 Act makes it an offence to make a false statement or representation in relation to superannuation, which can attract fines of up to $22,200 for individuals and $111,000 for corporations, as per the Crimes Act 1914.

Area of Law: Superannuation Law
Instrument: Amending Act
Concepts: Commencement Provisions; Repeal & Amendment; Delegated & Subordinate Legislation

Interactions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.

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